§ 1 The basis of the contractual relationship
1.1 hpm, headquartered in Osnabrück, Germany, is a consulting and service company providing compliance consulting and operational services (the "Services" hereinafter) on product and environmental legal requirements on the basis of these GTC and the respective individual written offer of hpm.
1.2 The scope of the services owed by hpm in detail results from the respective offer, the order confirmation and these GTC.
1.3 The services are rendered with reasonable care and to the best of hpm's knowledge and belief by qualified employees of hpm. The employees assigned by hpm are exclusively subject to hpm's right to issue instructions. hpm reserves the right to replace employees at its own discretion even during a project.
1.4 Depending on the order, hpm shall provide the services either in German or in English. Unless expressly provided for in the contract with you, translation services are not owed. If you request a translation, it will be provided in consultation with you either internally by hpm or by a qualified translation agency. You agree that the content to be translated may be transmitted to the partner by hpm for this purpose. Translation costs will be borne by you, unless otherwise agreed in individual cases.
1.5 hpm is entitled to provide partial services, as far as these are agreed upon in the individual case or are reasonable and reasonable for you.
1.6 hpm is entitled to subcontract parts of the services to other service providers who may contact you directly. The responsibility for the work results, the performance of the services and for other obligations resulting from the order lies exclusively with hpm.
1.7 hpm is not responsible for the use or implementation of the results of our services in your company. In this respect, hpm does not assume any management tasks in connection with the services for you.
1.8 Our services expressly do not constitute legal advice in the narrower sense and cannot and are not intended to replace such advice.
§ 2 Your responsibilities and duties to cooperate
2.1 You will appoint a qualified contact person for hpm to accompany our services. You are responsible for all business management decisions in connection with our services, the use or implementation of the results of our services and the decision on the extent to which our services are suitable for your purposes.
2.2 You are obliged to procure the data, information, documents and/or resources required for the performance of the services within the agreed deadlines and to provide them to hpm correctly and completely.
2.3 The required data also includes already existing access data to reporting portals at registration authorities or Producer Compliance Schemes, if you have commissioned hpm with the performance of quantity reports. All data and information will be treated confidentially according to § 5 of this contract.
2.4 If you have commissioned hpm with the reporting (quantity reports) for WEEE, batteries and/or packaging in a country, you are obliged to provide hpm with the data required for the reporting at the respective times predefined by hpm.
2.5 If your cooperation is required or agreed upon for a service of hpm and if you do not provide this cooperation, not completely, not correctly or not within the agreed deadlines, deadlines or periods depending on the cooperation shall be extended for hpm by the time you do not comply with your obligation to cooperate.
2.6 hpm shall not be liable for any damage caused to you by the fact that a timely and/or correct and/or complete transmission of data and/or information (e.g. reporting of quantities) by hpm to third parties (e.g. Producer Compliance Scheme) according to the deadlines agreed upon in the contract could not or not correctly be effected due to your breach of duties to cooperate according to § 2.1-2.5.
2.7 Agreed and/or required acts of cooperation shall always be performed by you at your own expense.
§ 3 Our work results
3.1 You receive a non-exclusive, non-transferable right of use to the contractual services of hpm.
3.2 Any information, consulting services, presentations or other content (the "Work Product") that we provide to you in performance of the Agreement is solely for your internal use.
3.3 Without hpm's prior written consent, you may neither disclose the work results to third parties (including your affiliates) nor publish them.
3.4 This does not apply if you are obliged to disclose due to a law. In this case, you shall inform hpm of this fact without delay.
§ 4 Liability and compensation
4.1 hpm undertakes to render the services with due diligence.
4.2 hpm shall be liable without limitation according to the statutory provisions for damages to life, body and health caused by a negligent or intentional breach of duty by hpm, its legal representatives or its vicarious agents.
4.3 For damages caused by fraudulent conduct, intent or gross negligence, hpm shall also be liable within the scope of the statutory provisions.
4.4 hpm is also liable for damages caused by simple negligence, as far as this negligence concerns the violation of such contractual obligations, the compliance with which is of particular importance for the achievement of the purpose of the contract. hpm is, however, only liable as far as the damages are typically connected with the contract and foreseeable ("contract-typical foreseeable damage").
4.5 You shall indemnify and hold hpm harmless from and against any and all claims of third parties (including your affiliates) as well as any damages, costs and other claims resulting from the use of the Work Results by third parties, if you have disclosed or caused the disclosure of Work Results to third parties in violation of § 3.3 and third parties have relied on the Work Results.
§ 5 Confidentiality
5.1 The contracting parties mutually undertake to treat as confidential all knowledge of confidential information and trade secrets of the respective other contracting party obtained within the scope of the performance of the contract as well as on the occasion of the cooperation and not to exploit or use such information or make it accessible to third parties during the term as well as after termination of the contract without the prior written consent of the party concerned. Any use of such information shall be limited solely to the use for the execution of this contract together with the individual contracts existing between the contracting parties.
5.2 The duty of confidentiality shall not apply to confidential information and trade secrets,
- which were already in the public domain at the time of disclosure or which subsequently become in the public domain, without any failure to comply with the above provisions being a contributory cause thereof,
- expressly disclosed by a Party on a non-confidential basis,
- were already in the lawful possession of the other Party prior to disclosure, or
- subsequently disclosed to it by a third party without breach of any duty of confidentiality.
5.3 The contracting parties shall oblige their employees, vicarious agents and assistants accordingly.
5.4 The obligations described above shall remain in force for both Parties even after termination of the Agreement for another two (2) years after its termination.
5.5 Confidential documents shall remain the property of the party that provided these documents to the contractual partner. Upon termination of the contract, the contracting parties undertake to return the documents received, including any copies made, immediately upon request by the contracting party.
5.6 Furthermore, you undertake to change passwords or similar, which you have given to hpm for the provision of services, independently after termination of the contract.
§ 6 Remuneration
6.1 All contractually agreed prices are net prices excluding taxes, customs duties, fees or similar charges.
6.2 To the extent provided by law, the prices agreed upon shall be subject to the statutory value-added tax applicable at the time of performance. This will be shown separately by hpm in the invoice. If the parties have agreed on a net price, but the tax office, upon examination of the VAT declaration, comes to the conclusion that the service is subject to VAT, hpm will make an invoice correction by written declaration and claim the VAT from you.
6.3 Reasonable advance payments on our remuneration and expenses may be demanded. If hpm is entitled to partial performance, partial payments may be demanded. No cash discount will be granted.
6.4 For services rendered outside hpm's locations, hpm will claim travel expenses. This will be done on a time and material basis against proof and for expenses and meals according to the maximum tax rates. In addition, travel time will be charged at half the hourly rate.
6.5 Unless otherwise agreed in individual contracts, payments shall be due within 14 days of the invoice date.
6.6 If you do not meet a payment deadline, hpm is entitled according to § 288 para. 2 BGB (German Civil Code) to charge interest from the date of default up to 9.0 percentage points above the respective base interest rate. The proof of a higher damage by hpm is admissible, the proof of a lower damage by you is possible.
6.7 If you are more than 30 days in arrears with a payment, hpm is entitled to refuse further services until all outstanding amounts have been paid in full or to perform services only against advance payment. hpm is not liable for any damages you may incur as a result.
§ 7 Force majeure
Neither of the contracting parties shall be responsible for any breach of the respective individual contract if such breach is caused by circumstances beyond the control of the contracting parties ("force majeure").
§ 8 Term and termination
8.1 The term agreed in the respective individual contract shall apply.
8.2 If no term is agreed, the contract shall be concluded for an indefinite period.
8.3 Contracts concluded for an indefinite period of time may be terminated by either contracting party with three months' notice to the end of the month. A contract concluded for an indefinite period may only be terminated extraordinarily for good cause.
8.4 Fixed-term contracts may only be terminated prior to the expiry of the agreed term for good cause. Good cause shall be deemed to exist in particular if one party fails to fulfill its respective material contractual obligations even after expiration of a reasonable grace period.
8.5 The notice of termination shall be addressed in writing to the respective project manager specified in the individual contract. If no project manager is designated, the notice of termination shall be addressed to the management of the respective other party.
8.6 In the event of termination, the services rendered up to the time of termination shall be remunerated as contractually agreed.
8.7 In case of a premature termination of the contractual relationship, in case of a lump-sum fee agreed upon, the services already rendered by hpm up to the time of termination shall be remunerated by you on an hourly basis. The amount to be compensated shall not exceed the originally agreed upon flat fee.
§ 9 Limitation
9.1 Claims against hpm, its employees, vicarious agents or assistants shall become statute-barred within one year from the statutory commencement of the limitation period.
9.2 Excluded from 9.1 are claims for damages due to injury of life, body or health or due to damages caused by gross negligence or intentionally by hpm. In this respect, the statutory limitation periods shall apply.
§ 10 Applicable law and place of jurisdiction
10.1 These GTC as well as the respective individual contract shall be governed by the laws of the Federal Republic of Germany to the exclusion of international private law.
10.2 The exclusive place of jurisdiction for all disputes arising in connection with these GTC or the services shall be Osnabrück.
§ 11 Miscellaneous
11.1 The respective individual contract and these GTC contain the complete agreements on the subject matter of the contract between the parties. Verbal collateral agreements have not been made.
11.2 Amendments and/or supplements to these GTC must be made in writing in order to be effective, unless they are based on an express and individual contractual agreement.
11.3 hpm reserves the right to change and/or amend these GTC with a reasonable notice period of at least six weeks. The announcement will be made to you in writing or by e-mail.
11.4 If you do not object within six weeks after notification, the amended terms and conditions shall be deemed accepted. In the announcement of the amendment, you shall be separately informed of the significance of the six-week period.
11.5 An amendment and/or supplement to these GTC shall be considered in particular if:
- if the amendment serves to bring the GTC into compliance with the applicable law, in particular if the applicable legal situation changes;
- if the change serves to comply with mandatory judicial or official decisions;
- if entirely new services are introduced that require a provision in the GTC and this does not affect the existing contractual relationship with you to your detriment;
- if the change is only beneficial to you.
Hellmann Process Management GmbH & Co KG
Tel.: 0541 40898-0